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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  4454  OF 2014 (arising out of SLP(C)No.30146 of 2012)

NAGAR PALIKA PARISHAD,  MIHONA AND ANR.       … APPELLANTS

VERSUS

RAMNATH AND ANR.         … RESPONDENTS

J U D G M E N T  

SUDHANSU JYOTI MUKHOPADHAYA, J.

Leave granted.

2. This  appeal  has  been  preferred  by  the  appellants-Nagar  Palika  

Parishad,  Mihona  (hereinafter  referred  to  as  “Nagar  Palika”)  against  the  

judgment dated 11th April, 2012 passed by the High Court of Madhya Pradesh  

Bench  at  Gwalior  in  Second  Appeal  No.568  of  2009.  By  the  impugned  

judgment  the  High  Court  dismissed  the  Second  Appeal  and  affirmed  the  

judgments passed by the first appellate court and the trial court.

3. The  case  of  the  appellant–Nagar  Palika  is  that  on  finding  that  

respondent No.1 – plaintiff has made encroachment on a public road, namely,  

Khitoli Road, a notice under Section 187 of the M.P. Municipalities Act, 1961  

(hereinafter referred o as “Act, 1961”) dated 26th November, 1982 was issued  

to respondent No.1–plaintiff  calling upon him to remove the encroachment  

from Khitoli  Road at Mihona, District Bhind, M.P. (hereinafter referred to as  

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“suit  land”).   As  respondent  No.1  –  plaintiff  refused  to  comply  with  the  

aforesaid notice and also failed to show any title over the encroached land,  

another notice  was issued on 23rd December,  1982, intimating respondent  

No.1–plaintiff  that  if  the encroachment  is  not  removed by  him it  shall  be  

removed by the appellant, in exercise of power conferred under Section 109  

read with Section 223 of the Act, 1961.  

4. Instead of  complying with the aforesaid notices,  respondent No.1 –  

plaintiff filed Civil Suit No.79/90 in the Court of 1st Civil Judge, Class-I, Lahar,  

District  Bhind  for  declaration  of  his  title  and  permanent  injunction  for  

restraining the appellants from interfering in his possession over the suit land  

contending that the suit land was his ancestral property.  The aforesaid suit  

was contested by the appellant by filing written statement contending, inter  

alia, that the suit land is a public road which the appellants intend to make a  

Pakka (Road) in consonance with the public policy and public interest due to  

which the action for removal of encroachment has been taken and that the  

suit was not maintainable for want of notice under Section 319 of the Act,  

1961.

5. The trial court on hearing the parties by its judgment and decree dated  

20th August, 2008 decreed the suit in favour of respondent No.1–plaintiff.  The  

trial court held that no notice under Section 319 of the Act, 1961 is required to  

be issued before filing a suit for permanent injunction. The aforesaid judgment  

was upheld by the first appellate court by the judgment and decree dated 31st  

August, 2009 in C.A. No. 20/09.

6. The second appeal preferred by the appellant was dismissed by the  

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High  Court  though  the  appellant  raised  one  of  the  following  substantial  

questions of law:  

►Whether  the  suit  filed  by  respondent  No.1  -  plaintiff  was   

maintainable for non-compliance of statutory requirement of notice as   

contemplated by Section 319  of the Act, 1961.

7. Section 319 of the Act, 1961 bars suits in absence of notice and reads  

as follows:

“Section 319-Bar of suit in absence of notice.-(1) No  suit shall be instituted against any Council or any Councilor,   officer  or  servant  thereof  or  any person acting under  the   direction of any such Council, Councilor,  officer or servant   for anything done or purporting to be done under this Act,   until  the expiration  of  two months next  after  a notice,  in   writing, stating the cause of action, the name and place of   abode  of  the  intending  plaintiff  and  the  relief  which  he   claims, has been, in the case of a Council delivered or left   at its office, and, in the case of any such member, officer,   servant or person as aforesaid, delivered to him or left at   his office or usual place of abode; and the plaint shall contain a statement that such   notice has been delivered or left.

(2)Every suit shall be dismissed unless it is instituted within   eight months from the date of  the accrual  of  the alleged   cause of action.  

(3)Nothing in this section shall be deemed to apply to any   suit instituted under Section 54 of the Specific Relief  Act,   1877 (I of 1877).”

8. Respondent  No.1-plaintiff  filed  the  suit  for  declaration  of  title  and  

permanent injunction.  In view of bar of suit for declaration of title in absence  

of notice under Section 319 the suit was not maintainable.  The Courts below  

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wrongly held that the suit was perpetual injunction though the respondent  

No.1-plaintiff filed the suit for declaration of title and for permanent injunction.  

9. Respondent No.1-plaintiff cannot derive advantage of sub Section (3)  

of Section 319 which stipulates non-application of the Section 319 when the  

suit  was  instituted  under  Section  54  of  the  Specific  Relief  Act,  1877 (old  

provision) equivalent to Section 38 of the  Specific Relief Act, 1963 and reads  

as follows:

“Section  38.Perpetual  injunction  when  granted.- (1)Subject to the other provisions contained in or referred to   by this Chapter,  a perpetual  injunction may be granted to   the plaintiff to prevent the breach of an obligation existing in   his favour, whether expressly or by implication.  

(2)When any such obligation arises from contract, the Court   shall  be  guided  by  the  rules  and  provisions  contained  in   Chapter-II.

(3)When the defendant invades or threatens to invade the   plaintiff’s right to, or enjoyment of, property, the Court may   grant a perpetual injunction in the following cases, namely:

(a)where the defendant is trustee of the property   for the plaintiff;

(b)where there exists no standard for ascertaining   the actual damage caused, or likely to be causes,   by the invasion;

(c)where the invasion in such , that compensation   in money would not afford adequate relief;

(d) where the injunction is necessary to prevent a   multiplicity of judicial proceedings.”

The benefit aforesaid cannot derive by Respondent No.1-plaintiff as the  

suit  was  filed  for  declaration  of  title  coupled  with  permanent  injunction.  

Respondent No.1 having claimed title, the suit cannot be termed to be suit for  

perpetual injunction alone.   

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10. Along with the trial court and the appellate court, the High Court also  

failed  to  appreciate  the  aforesaid  fact  and  also  overlooked  the  valuable  

interest and right of public at large, to use the suit land which is a part of  

public street.  Further, in absence of challenge to the notice of eviction issued  

by the appellant, it was not open to the trial court to decide the title merely  

because  permanent  injunction  coupled  with  declaration  of  title  was  also  

sought for.

11. In view of our finding, we set aside the impugned judgment dated 11th  

April, 2012 passed by the High Court in second appeal as also the  judgment  

and decree passed by the first appellate court and the trial court.  It will be  

open to  the  appellant  to  proceed in  accordance  with  law.   The  appeal  is  

allowed with aforesaid observations.   

………………………………………………….J.                      (SUDHANSU JYOTI MUKHOPADHAYA)

……………………………………………….J.                (V. GOPALA GOWDA)

NEW DELHI; APRIL 9, 2014.

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